09 - Chapter 3

CHAPTER 3
LEGISLATIVE MEASURES ON LAW RELATED TO DOWRY

PROHIBITION
Over the most recent couple of decades, women in India have confronted the
offences related to domestic violence, wife battering, cruelty, dowry and dowry death
in a more intense form than the past1. From time to time piecemeal changes have been
brought about in the legislative framework in order to deal with issues and offences
related to dowry. Numerous laws have been enacted and implemented to curb these
dowry related crimes against women as well as to raise the status of women. In spite
of such legislative efforts, the women are still being oppressed in the society because
of the continuance of the evil of dowry which is somehow directly or indirectly
responsible for most of other kinds of violence against women. The dowry
prohibition laws aim to keep a check over the custom of giving and demanding dowry
in connection to the marriage since this custom has acquired an ugly form of a tool of
oppression and harassment of the bride and her parents. In many cases, the failure of
bride‘s parents to meet dowry demands result in occurrence of some severe crimes
against the brides like cruelty, dowry death, abetment to suicide etc. The non
fulfillment of dowry demands result in coercion, harassment, infliction of mental and
physical torture to women and in extreme cases they may be strangulated, poisoned or
burnt alive. 2
3.1 Initial Legislative Attempts related to Dowry Prohibition
Though dowry was in its whispering stage, the first attempt related to dowry
prohibition was done with the enactment of ―Sindh Deti-Leti Act, 1939‖.3It prohibited
1
National Crime Records Bureau, Report: Crime in India, 2016 Statistics (Ministry of Home Affairs,
October, 2017) available at: http://ncrb.gov.in/Sta tPublications/CII/CII 2016/pdfs/ NEWPDFs
/Crime%20in%20India%20-%202016%20Complete%20PDF%20291117.pdf (Visited on April 21,
2018).
2
C.S. Ambili, ―Domestic Violence : Problems and Perspectives‖ CULR 129 (2003) available at:
http://dspace.cusat.ac.in/jspui/bitstream/123456789/10826/1/Domestic%20Violence%20_%20Probl
ems%20and%20Perspectives.PDF(Visited on October 12, 2016).
3
Vinay Sharma, Dowry Deaths 22(Deep and Deep Publications, New Delhi, 2007) available at:
https://books.google.co.in/books?id=xQM3qauAHncC&pg=PA22&lpg=PA22&dq=Sindh+Deti-
Leti+Act,+1939&source=bl&ots=XjUZbccMcP&sig=ACfU3U0-
dvH6J4XY5h3wpiyYJKD43fs1jw&hl=en&sa=X&ved=2ahUKEwidz7eU8uHmAhUpxzgGHaofCF
69
the giving and taking of any valuable article or dowry beyond permissible limit
prescribed by the list enumerated by the panchayats or provincial governments.4 The
next step was ―Bihar Dowry Restraint Act, 1950‖5 and ―The Andhra Pradesh Dowry
Prohibition Act, 1958‖6. Although the provincial enactments could not bring the
desired results, but they stimulated the general public to raise a voice against dowry as
the dowry system started strangulating the peace of society. 7 Perhaps the Central
government felt that ―The Hindu Succession Act, 1956‖8 may be a suitable alternative
to the eradication of dowry system as many provisions in the Act were made with
regard to the women. All these enactments appeared to be really pro-women but due
to the lack of effective awareness, and proper utilization, most of the Acts merely
remained on papers rather than curbing the menace of dowry. 9
In view of the persistent nature of the problem and thereby adverse

consequences of dowry system, ―The Dowry Prohibition Bill, 1959‖ was introduced
on 24th April, 1959 with an objective of eradicating the evil of dowry system. 10 The
underlying object behind this bill was to prohibit the giving and taking of dowry in
connection to the marriage.
3.2 Making of Anti- Dowry Legislation
On 24th April, 1959, ―The Dowry Prohibition Bill, 1959‖ was introduced by
the government. After a discussion and introduction of several changes, it was further
moved to the joint committee.11 Finally the bill was taken into the consideration at a
joint sitting of Rajya Sabha as well as Lok Sabha and was passed on 1st July 1961.
Therefore after a long awaited time period, ―The Dowry Prohibition Act, 1961‖ was
finally enacted to curb the menace of dowry with an objective of eradicating this
cQ6AEwEnoECAkQAQ#v=onepage&q=Sindh%20Deti-Leti%20Act%2C%201939&f=false
(Visited on February 10, 2019).
4
The Sindh Deti-Leti Act, 1939 available at: http://sindhlaws.gov.pk/setup/publications/PUB-14-
000155.pdf(Visited on May 22, 2019).
5
R. Jaganmohan Rao, ―Dowry System in India—a Socio-Legal Approach to the Problem‖ 15 JILI
618 (1973) available at: https://www.jstor.org/stable/43950234?seq=1(Visited on May 22, 2019).
6
Supra note 3.
7
Suman Nalwa and Hari Dev Kohli, Law Relating to Dowry, Dowry Death, Cruelty to Women &
Domestic Violence 26 (Universal Law Publication Co., New Delhi, 2013).
8
The Hindu Succession Act, 1956 available at: http://egazette.nic.in/WriteReadData/1956/E-2173-
1956-0038-99150.pdf (Visited on April 24, 2018).
9
R. Revathi, Law Relating to Domestic violence 66 (Asia Law House, Hyderabad, 2004).
10
Supra note 7.
11
Id. at 30
70
practice12. This Act is considered to be a remedial as well as a penal statute
simultaneously.13 Originally, there were ten Sections in the Act and afterwards
Sections 4A, 14 8A15 and 8B16 were further added by the Amendment17. Section 2
defines the term ‗Dowry‘ and Section 3 prescribes the punishment for giving and
taking dowry. Dowry is defined as any property or valuable security given or agreed
to be given either directly or indirectly.
(a) By one party to a marriage to the other party to the marriage, or
(b) By the parent of either party to a marriage or by any other person, to either party
to the marriage or to any other person, on or before or any time after the marriage
in connection with the marriage of the said parties, the definition of Dowry does
not include dower or mahr in case of persons who are governed by Muslim
Personal Law (Shariat).
The Amendment Act of 1984 has deleted the Explanation I of Section 2.18
However Explanation II explains that the meaning of the term ―valuable security‖ is
same as given in the Section 30 of I.P.C.19
There are generally three types of the traditional presents that can be given to a
bride in a Hindu marriage:
12
The Dowry Prohibition Act, 1961
13
Gurditta Singh v. State of Rajasthan, 1992 Cri LJ 309.
14
Section 4A Ban on advertisement.—If any person—
(a) offers, through any advertisement in any newspaper, periodical, journal or through any other
media, any share in his property or of any money or both as a share in any business or other
interest as consideration for the marriage of his son or daughter or any other relative,
(b) prints or publishes or circulates any advertisement referred to in clause (a),
He shall be punishable with imprisonment for a term which shall not be less than six months,
but which may extend to five years, or with fine which may extend to fifteen thousand rupees.
Provided that the Court may, for adequate and special reasons to be recorded in the judgment,
impose a sentence of imprisonment for a term of less than six months.
15
Section 8A, The Dowry Prohibition Act, 1961
16
Section 8B, The Dowry Prohibition Act, 1961
17
The Dowry Prohibition (Amendment) Act, 1986
18
Ibid.
19
Section 30 ―Valuable security‖.—The words ―valuable security‖ denote a document which is, or
purports to be, a document whereby any legal right is created, extended, transferred, restricted,
extinguished or released, or where by any person acknowledges that he lies under legal liability, or
has not a certain legal right. Illustration A writes his name on the back of a bill of exchange. As the
effect of this endorsement is transfer the right to the bill to any person who may become the lawful
holder of it, the endorsement is a ―valuable security‖.
71
(i) Property or valuable articles that are given with an intention that those would be
exclusively and personally used by the bride like her personal jewellery, clothes
etc.
(ii) Articles or property of dowry which may be for common utilization or use by her
and the other members living in her matrimonial home.
(iii) Articles or property exclusively given as gifts to her husband or the in-laws and
other members of her husband‘s family. There is no control of the bride on such
items and valuable property, once it is gifted.
Consequently, the third type of gifts, property or valuable articles given

exclusively to the husband or his relatives after delivery would pass into their
ownership and obviously seize to be the property of the bride. 20 The first category of
gifts are generally considered as ‘Stridhan’, however the second and third category
may fall under the ambit of dowry if the other essentials of Section 2 are fulfilled.
Difference between Dowry and ‘Stridhan’
The word ‘Stridhan’ literally means property of a woman. This concept has
originated from Hindu ‗Smritis’, the traces of its origin are also found in Dayabhaga
and Mitakshara school of Hindu law. 21 Centuries ago, gifts given to the bride at the
nuptial fire, at the bridal procession, gifts given as a token of love by in-laws as well
as gifts given by her own parents and relatives were considered to be her ‗Stridhan’.
For determining the issue that whether a particular kind of property acquired by a
woman is covered under the ambit of Stridhan or not the source of acquiring that
property has to be scrutinized. However, the gifts made to the bridegroom or his
relatives by the parents or relatives of bride during and after marriage are not
considered as stridhan.22
Stridhan is quite often misunderstood or misinterpreted as dowry even though

the judiciary has time to time made a clear cut distinction between the two. Dowry
20
P.K. Majumdar & R.P. Kataria, Law relating to Dowry Prohibition cruelty & Harassment 231
(Orient Publishing Company, New Delhi, 3rd Edition).
21
Shreeparna Dutta, ―Property Rights of Hindu Women in India – A Reflection of Social Change 1(2)
JLAR 72 (2014) available at: http://www.ijlp.in/ijlp/imageS/Volume-1,%20Issue-2,%20June-14.pdf
(Visited on August 12, 2018).
22
Mukund Sarda, ―Claim of Stridhan Property and Limitation Period: A Study‖ Available at:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2758031(Visited on Sep 22, 2019).
72
signifies the presents given to the married couple or the bridegroom as well his
relatives in connection to the marriage by the bride‘s side however Stridhan is the
property or valuables exclusively given to the bride or meant for the bride only. 23
Dowry is a property or valuable security given or agreed by the bride‘s side to

the bridegroom or his family members before, during or after marriage, by
pressurizing or demanding while Stridhan is a voluntary gift by the parents or family
of the bride which is exclusively given to the bride as a venturing stone to building up
her own assets and strengthening her household.24 ―When the wife entrusts her
Stridhan property with the dominion over that property to her husband or any other
member of the family and the husband or such other member of the family
dishonestly misappropriates or converts to his own use that property, or willfully
suffers and other person to do so, he commits criminal breach of trust‖.25 Therefore
stridhan and dowry are not synonyms as stridhan is permitted but dowry is clearly
prohibited under the law. 26
Meaning of the Expression- ‘given or agreed to be given’
The legislative intention is clear that there should not be any grey area left in
the definition for any manipulation by the people. There is no such loophole left
where the people may resort camouflage methods and take dowry articles either
before the marriage or after the marriage. Henceforth, the expression ―given or agreed
to be given‖ has been incorporated very wisely. This expression is used to give a wide
coverage to the demand of dowry and impliedly covers the acceptance to such
demand as well. 27
The scope of the term dowry is widely defined so as to include all kinds of
properties, valuable articles, gifts, cash etc., given, taken; agreed to be, agreed to be
taken; given directly or indirectly. 28 The word ‗dowry‘ can be any valuable article,
cash, and property etc; given or agreed to be given in connection with the
23
Shyam M. Sachdev v. State, 1991 Cri LJ 300
24
Leepakshi Rajpal and Mayank Vats, ―Stridhana: A Critical Approach‖7 IJRSSH 89 (2017), 89
available at: http://www.ijrssh.com/images/short_pdf/1501650266_Leepakshi_9.pdf (Visited on
Sep 22, 2019).
25
Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397.
26
Section 3, The Dowry Prohibition Act, 1961.
27
Supra note 6 at 34.
28
Vemuri Venkateswara Rao v. State of Andhra Pradesh, 1992 Cri LJ 563
73
marriage.29It is within the scope of this Section if such valuables are given exactly at
the time of the marriage or even before the time of marriage and even afterwards
when the marriage has already occurred.30
―Dowry‖ in the meaning of the expression contemplated by Dowry Act is a

fulfillment of demand or a demand for any valuable article, property or security
having an inseparable connection with the marriage. It may be understood as a
consideration for marriage from the bride‘s parents or relatives to the bride-groom or
his parents or even may be to the other relatives for an agreement to marry the bride
and keep the nuptial relation harmonious. However, where there is no connection or
nexus with the consideration for the marriage of such a demand, it does not amount to
a demand for dowry.31 The Supreme Court has strictly remarked that ―furnishing of a
list of ornaments and other household articles such as refrigerator, furniture, electrical
appliances, etc., at the time of the settlement of the marriage amounts to demand of
dowry within the meaning of Section 2 of the Dowry Prohibition Act, 1961‖.32 But in
a situation where the legal validity of a marriage cannot be established, a demand of
dowry in respect of such a marriage is not legally recognizable 33
Distinction between Mahr, Dower and Dowry
Mahr, dower and dowry are entirely different concepts. While on one side
dowry is a social evil against woman and is prohibited by law, on the other side, the
object of dower is to provide financial security to a woman during and after her
marriage and it is legally well permitted.
Mahr differs from dowry in both legal as well as social aspects. According to
the Muslim Personal Law, ‘Mahr’ is a predetermined amount of money, assets or
benefits that is bestowed with the wife which she is entitled to collect from husband.
The underlying object is to provide independence to the wife and enable an indirect
check over the husband‘s arbitrary power of taking divorce. 34
29
Satbir Singh v. State of Punjab, AIR 2001 SC 2828.
30
B.K Sharma and Vijay Nagpal, Treatise on Economic & Social Offences 111(Allahabad Law
Agency, Faridabad, 2010)
31
Arjun Dhondiba Kamble v. State of Maharashtra, 1995 AIHC 273.
32
Madhu Sudan Malhotra v. K.C. Bhandari, 1988 SCC 424
33
Reena Aggarwal v. Anupam, AIR 2004 SC 1418.
34
Md Sahabuddin Mondal, ―Difference between Mahr and Dowry‖ available at:
https://lawcorner.in/difference between-mahr-dowry/(Visited on Sep 22, 2018).
74
In Saburannessa v. Sabdu Sheikh, it was clearly held by the Calcutta High
Court that ―dower is an obligation imposed as a mark of respect for the women and
not a consideration for the performance of the contract of marriage‖ 35. ‘Jahez’ is a
term used in Islam for dowry and it is strictly prohibited under the Islamic Law.
‘Jahez’ is regarded as a social and cultural evil in Islam and highly condemned.
However, the concept of ‘Mahr’ is considered to be an epitome of women
empowerment under Islamic Law. It is considered as a right which is conferred to the
wife/bride unlike the evil of dowry where a wrongful liability is imposed on the
wife/bride or her family. Mahr is viewed as a tool for providing equality to the
women in a different sense and giving a voice to them. Mahr has a significant
importance in Muslim marriages as it acts as a tool to provide protection to the
women against the discretionary abuse of the unlimited power of divorce conferred
with the husband.
Punishment for Giving or Taking Dowry
Section 3 and 4 provide punishment for giving or taking dowry as well as

demanding dowry which may extend to five years sentence and a minimum fine of
fifteen thousand rupees or the fine equal to the amount of the total value of such
dowry. Any person directly or indirectly demanding dowry, from the parents or other
relatives or guardian of either side, shall be liable for a minimum sentence of six
months and a maximum imprisonment of two years along with ten thousand rupees
fine. Hence mere demanding any kind of dowry before marriage even without the
fulfillment of such a demand is also a punishable offence.36
The Punjab and Haryana High Court also opined that if any kind of list of
jewellery or any other household item is furnished before marriage as a settlement of
conditions of marriage, it amounts to the offence of demanding dowry and the persons
involved are liable to be convicted under Section 4. 37Giving or receiving dowry or
even abetment for giving or receiving dowry, after the commencement of this Act is
prohibited by Section 3 of the Act38. However, there shall not be any retrospective
application of the Act.39
35
AIR 1934 Cal 693.
36
Pandurang Shivram Kawathkar v. State of Maharashtra, 2001 Cri LJ 2792.
37
Raksha Devi v. Aruna Devi, I (1991) DMC 46 (P&H).
38
39
Supra note 20 at 246.
75
Essentials of Section 2 must be satisfied to Invoke Section 3 and 4.
It is essential that to bring a case under the ambit of Section 3 or 4, the

ingredients of Section 2 must be fulfilled. It means that there must be a demand of
dowry ‗or giving or taking of ‗dowry‘. Precisely, the valuables or property in question
must be covered under the definition of ‗Dowry‘ as given in Section 2. Moreover,
such a demand must be of the valuables, property or money agreed to be given in
relation to the marriage of parties.40 If the evidence on record is adequate to prove that
the accused received a sum of two thousand rupees and ten gram of gold during
marriage and same were demanded as dowry and were not accepted as gifts, thereby,
conviction under Section 3 and 4 is confirmed. 41
In a related case, Bhoora Singh v. State of Uttar Pradesh42 , a letter was

produced as evidence which was written by the deceased to her father. The repeated
incidents of her ill-treatment, harassments and threats of dire consequences for non-
satisfaction of demands of dowry given by her in-laws were clearly mentioned by the
deceased in that letter. After some time of writing that letter, she was burnt to death
by her in-laws by setting her on fire. The Court held that the evidence was sufficient
to hold that an offence of demanding dowry under Section 4 had been committed.
Section 4 A puts a ban on any kind of advertisement on giving or taking of

dowry.43 It penalizes any offering any share in the property or any cash or both or any
other interest as consideration in connection to the marriage by any person in the
marriage of his son/ daughter or any other relative; by publishing or giving or
circulating any advertisement in a newspaper, periodical, journal, or through any
means of media. The minimum imprisonment for this offence is six months and the
40
Id. at 259.
41
State v. Shivappa Bhimappa Pathat, 2003 (2) Kar LJ 171.
42
1993 Cri LJ 2636 All.
43
Section 4A Ban on advertisement.—If any person—
(a) offers, through any advertisement in any newspaper, periodical, journal or through any other
media, any share in his property or of any money or both as a share in any business or other
interest as consideration for the marriage of his son or daughter or any other relative,
(b) prints or publishes or circulates any advertisement referred to in clause (a), he shall be
punishable with imprisonment for a term which shall not be less than six months, but which
may extend to five years, or with fine which may extend to fifteen thousand rupees.
Provided that the Court may, for adequate and special reasons to be recorded in the judgment,
impose a sentence of imprisonment for a term of less than six months, The Dowry Prohibition
Act, 1961.
76
maximum is five years, or a fine of maximum of fifteen thousand rupees. However,
the court may, if finds adequate, then may impose an imprisonment of less than six
months after recording special reasons in the judgment.
Section 5 clearly states that any kind of agreement that constitutes giving or
receiving dowry is void. Therefore, such kind of agreement is not enforceable under
law. In case of void agreements, the law refuses to give effect to it, it means that even
if an agreement to give or take dowry is carried out, the person promising to pay
dowry cannot be legally forced to pay the dowry which he has promised and therefore
if the promisee seeks to enforce it, the Court will not help him. 44
Section 6 is the result of the Joint Committee Report presented by both houses
of Parliament at the time of legislation of ―Dowry Prohibition Act, 1961‖.
Consequently, changes were made by virtue of the Amendment Acts of 1984 and
1986. The prime objective was to wipe off the social image of the women of being an
economic burden and to improve their financial condition by protecting their material
assets.
The Section 6 provides that if dowry is received by any person other than the
bride, such a person must transfer it to the woman within a stipulated time and on
failure to do so, the person is punishable with imprisonment or fine. Secondly, if the
woman/bride entitled to such property dies before receiving it, then the legal heirs of
the woman are entitled to claim it. Thirdly, if such woman dies within seven years of
her marriage in unnatural circumstances, then such property shall be transferred to her
heirs. Failure to do so shall attract imprisonment or fine under Section 6.
Thus, by virtue of this Section, dowry is to be for the benefit of the bride or
her legal heirs and any violation for the same amounts to criminality and shall be
punishable.45 Section 6 of the D.P.A. aims at the benefit of such woman/wife/bride
whose property has been illegally retained by her husband or any other person
receiving such property on her husband‘s behalf and when they are not ready to return
back such property to her.46 However it is no where mentioned under Section 6 that
44
Supra note 6 at 78.
45
Id. at 83
46
Aimla Jayaram v. State of Andhra Pradesh, 1992 Cr LJ 2217.
77
the dowry items can be claimed back by the wife only after the marriage is
dissolved.47 It cannot be assumed that the parents of the bridegroom take dowry from
the parents of the bride only for and on behalf of the bridegroom. So they cannot
always claim that they do not receive any dowry. In fact, it is being observed very
often that the parents of the bridegroom are greedy who actually want to have the
dowry and take dowry. Therefore, parents of the bridegroom can be summoned for
committing an offence under Section 6.48
The person receiving dowry assets is legally liable to transfer these assets to
his wife within a prescribed time period. On failing to do the same, the wife may file a
complaint against him even at a place where she is residing and the husband can be
prosecuted on such complaint.49
Criminal Breach of Trust on Illegally Retaining Dowry Articles
Section 406 of I.P.C. is invoked where the husband or in-laws do not transfer
the property of dowry to the wife or her legal heirs in the situations mentioned under
Section 6. On failure to do so a proceeding under the offence of criminal breach of
trust can be initiated at either of the place where the property was received or retained
or the place of occurrence of criminal breach of trust.50
Section 7 provides for cognizance of offences of dowry and says that, the
offence under this provision is only triable in the court of metropolitan magistrate or a
judicial magistrate of first class or a court superior to that. The cognizance of this
offence can only be taken by the court at its own knowledge or on a police report
containing the facts of such offence or on the filing of complaint by the aggrieved
person, parents or relatives of aggrieved person or by a recognized welfare
organization. The aggrieved person shall not be dragged for the prosecution on the
basis of the statement made by him or her. Section 7(3) of D.P.A. bars cognizance of
complaint against the person aggrieved. 51 It is not necessary that only the victim
47
Joginder Kumar Bansal v. Anju, 1989 All LJ 914.
48
Supra note 6 at 85
49
P.T.S. Saibaba v. Mangatyara, 1978 Cri LJ 1362.
50
Harjit Kaur v. Baldeo Singh, 1980 HLR 373
51
78
girl/bride be considered as ‗aggrieved person‘. Even father of the victim girl, who was
compelled to give dowry can be considered as an aggrieved person. 52
The Act has not defined the meaning of the expression ‗to take cognizance‘
nor is defined in Cr PC. However, the term ‗cognizance‘ indicates the point when the
judicial notice of an offence is taken by the Magistrate.53 The legality of cognizance
can be determined at the point of time when the cognizance of an offence is actually
taken by the court. 54 Any of these five situations must be fulfilled as a pre-requisite
to take cognizance under this provision:
 If a complaint has been made by a person aggrieved by this offence,

 If a complaint has been made by the parent of aggrieved person,
 If a complaint has been made by the relative of aggrieved person,
 If a complaint has been made by any welfare institution or organization,
 The court can take cognizance at its own knowledge.
Section 8 states that every offence prescribed under the Act shall be
cognizable for certain purposes, and will be non-bailable as well as non-
compoundable in nature. It is to be noted that the offences prescribed under the Act
are cognizable for the purposes specified under Section 8(1)(a)(b) and this concept
―cognizable‖ is substituted by the Amendment Act of 1984. 55
The offences under the Act are non bailable and if the criteria of granting bail
are fulfilled and the court is satisfied upon the same, only then the bail can be granted.
By making these non bailable, the Legislature has tried to give biting teeth to the
provision to curb the evil of dowry.
A very important provision Section 8A was inserted in D.P.A. in the year

1986.56 It states that if a person is prosecuted under Section 3 of the Act for taking or
52
Yashpal Kumar v. Bhola Nath Khanna, available at: https://indiankanoon.org/doc/160230226/
53
Darshan Singh v. State of Maharashtra, AIR 1971 SC 2372.
54
M.L. Sethi v. R.P. Kapur, AIR 1967 SC 528.
55
Section 8- Offences to be cognizable for certain purposes and to be bailable and non-
compoundable.—
(1) The Code of Criminal Procedure, 1973 (2 of 1974) shall apply to offences under this Act as if
they were cognizable offences—
(a) for the purposes of investigation of such offences; and
(b) for the purposes of matters other than—
(i) matters referred to in section 42 of that Code; and
(ii) the arrest of a person without a warrant or without an order of a Magistrate, The Dowry
Prohibition Act, 1961.
56
79
abetting to take dowry or demanding dowry under Section 4, the burden of proof shall
lie on him to prove that he has not committed any offence. 57
This provision effectively protects the socio-economic interest of Indian

women. It is based on the pattern of Sec 113A and 113B of Evidence Act58. By
shifting the burden of proof on the accused, the woman is absolved of the burden of
establishing the guilt of the accused. However, the initial burden of bringing the
accused within the circumference still lies on the prosecution, as essentials of term
‗dowry‘ must be proved to have been fulfilled in accordance with Section 2 of Dowry
Prohibition Act. It signifies that Section 8(a) must be read with Section 2 of the Act.59
This provision has been inserted by the Amendment Act of 1985. The burden to prove
is placed on the shoulders of the person himself, against whom allegations of
committing an offence of either abetting or taking dowry is made. 60
The provision has been challenged as constitutionally invalid on the ground of

violating fundamental rights provided under Article 20(3)61, 2162 and 1463 of the
Constitution of India. But Section 8(a) was not found to be suffering from any
constitutional infirmity. 64
Section 8B was inserted by ―Dowry Prohibition (Amendment) Act 1986‖ that

empowers the State to appoint Dowry Prohibition Officers. These officers shall
exercise and perform all the powers and functions for the prevention of dowry related
offence and to collect evidences for the prosecution of persons committing offences.
It further empowers the Dowry Prohibition Officer to file complaint in the cases of
dowry.65This provision is inserted with an aim to create a social instrument designed
to eradicate the dowry practice from the society. The objective of this Section is a
57
Section 8A-Burden of proof in certain cases.—Where any person is prosecuted for taking or
abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the
burden of proving that he had not committed an offence under those sections shall be on him, The
Dowry Prohibition Act, 1961.
58
See Sections 113A and 113B, The Indian Evidence Act, 1872
59
60
Pawan Kumar v. State of Haryana, 1998 (2) CC Cases SC 12.
61
Article 20(3) - Protection in respect of conviction for offences- No person accused of any offence
shall be compelled to be a witness against himself, The Constitution of India.
62
Article 21- Protection of life and personal liberty- No person shall be deprived of his life or
personal liberty except according to procedure established by law, The Constitution of India.
63
Article 14- Equality before law.-The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India. Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth, The Constitution of India.
64
Harikumar v. State of Karnataka, ILR 1993 KAR 3035.
65
Yogesh Chhibbar v. State of U.P., 2000 Cri LJ 2849.
80
conscious step to employ social means to curb this evil but unfortunately the practical
implementation of this Section is lingering on. However, it appears that the D.P.A has
been over shadowed by the insertion of some provisions of Indian Penal Code. 66
Section 9 and Section 10 have empowered the Central Government 67 and the
State Government to make rules for carrying out the purposes of this Act by making a
notification in the respective Official Gazettes. 68
3.2.1 The Dowry Prohibition (Maintenance of the Lists of Presents to the Bride
and Bridegroom) Rules, 1985
With an objective to provide teeth to dowry prohibition laws, the Central

Government has decided to make it compulsory for the bride and bridegroom to make
a list of gifts and valuable articles given and taken during the wedding ceremonies.
These dowry prohibition Rules69 mandate the listing of gifts to ensure that the gifts
given in the form of money, jewellery, clothes, and other articles presented to the
bride at, before or after the marriage were exclusively given for her benefit and must
be mentioned in the list as well as registered.70 These lists must be made in writing,
shall contain the brief description of the presents and must be duly signed by the bride
and bridegroom respectively. 71 The non- compliance of these rules and non-
maintenance of such list can result into the imprisonment of up to three years for
bride, bride groom and even for their parents.
3.3 Dowry Related Offences Covered under Indian Penal Code
The occurrence of ‗dowry offences‘ is one such manifestation of imbalanced

power equations and gender violation, to which the married woman are subjected.
72
There are certain offences related to dowry which are covered under Indian Penal
Code.
66
67
68
69
The Dowry Prohibition (Maintenance of the Lists of Presents to the Bride and Bridegroom) Rules,
1985
70
Mamta Rao, Law Relating to Woman and Children 137 (Eastern Book Company, Lucknow, 2012).
71
Rule 2 (2), The Dowry Prohibition (Maintenance of the Lists of Presents to the Bride and
Bridegroom) Rules, 1985.
72
Supra note 9 at V.
81
In the year 1986, a new provision of ‗cruelty‘ u/sec 498A has been added
through an amendment.73 Under this Section, there is a provision of punishing
husband or his relatives for subjecting the wife for any kind of cruelty for demand of
dowry or which may drive her to commit suicide. 74 The maximum punishment is
three years for committing this offence. 75
3.3.1 Dowry Death (Section 304B)
In 1980s, the incidents of bride burning were increasing day by day and hence
had become a matter of concern for the Law Commission of India as well. After
realizing the need of a separate penal procedure, the Law Commission has submitted
its 91st Report on ―Dowry Deaths and Law Reforms‖ on 10th August 1983. 76 It has
been amply realized that the already the existing laws were facing huge difficulty in
getting sufficient evidence to prove guilt in bride burning cases. Hence, the
Commission also opined to institute a new provision facilitating a presumption in
dowry deaths once several essentials are proved.77
Section 304B in penal law and Section 113B in the law of evidence, both were
added for curbing the rapid increase in dowry murders, by the amendment of 1986. 78
The main objective behind these two insertions was to overcome the challenges in
collecting evidence, by adding presumptions. 79 An unfortunate part of dowry murders
is that such crimes occur within the enclosed four walls of matrimonial home of
73
Section 498A, The Indian Penal Code, 1860.
74
Vijay Pal Singh, ―Bride burning and Laws in India‖, available at:
http://www.legalserviceindia.com/articles/brbu (Visited on January 01, 2017).
75
Section 498A Husband or relative of husband of a woman subjecting her to cruelty
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which may extend to three years and shall
also be liable to fine.
Explanation- For the purpose of this section, "cruelty" means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health (whether mental or physical) of the
woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet such demand.
76
Law Commission of India, 91st Report on Dowry Deaths and Law Reform: Amending The Hindu
Marriage Act, 1955, The Indian Penal Code 1860 and The Indian Evidence Act, 1872, (August,
1983) available at: http://lawcommissionofindia.nic.in/51-100/Report91.pdf (Visited on January
11, 2017).
77
Dhan Singh v. State of U.P, 2012 Cr L J3 136(All).
78
79
Kunhiabdulla v. State of Kerela, AIR 2004 SC 1731.
82
victim. The offenders are often her in-laws, husband who are close relative of each
other. 80 Therefore, the chances are very rare that they will act as witness or produce
any evidence against each other.
The Meaning of ‘Dowry’ under Section 304B
The Indian Penal Code has not given any definition of the term ‗dowry‘ in the
Act. 81 However it is mentioned in the Section 304B that the term ‗dowry‘ shall be
having the same meaning as is given under Section 2(1) of ―Dowry Prohibition Act,
1961‖. 82 Dowry is defined as any kind of property or valuable security which is given
or which either of the party agrees to give directly or indirectly to another. 83 It can be
given before the marriage, at the marriage or after the marriage. ‗Mahr’ and ‗Dower’
are not included in the term dowry.
Very often it has been remarked by several courts that the term is not confined
to an agreement or demand which has been done before the marriage or at the time of
marriage, rather any subsequent demand even after the solemnization of marriage is
also covered within the ambit of dowry. 84
The Meaning of ‘Otherwise, than in Normal Circumstances’
Another essential of Section 304B is that the death must be occurred under
some unnatural or abnormal circumstances. Very often the Apex Court has remarked
that it means that the occurrence of death was in an unusual course and suspicious
circumstances were present. Even if a woman has committed suicide within 7 years of
her marriage, it could not be considered as a death occurred in normal circumstances.
85
The legislative intent behind the insertion of this provision was undoubtedly the
protection of women from husband and in-laws against dowry related violence and
murder.86 But it does not mean that the in-laws or relatives of husband of any
deceased could be merely roped on the grounds that they are also covered within the
meaning of close relatives. It must be proved beyond reasonable doubt that they have
80
K.D.Gaur, Commentary on the Indian Penal Code 960 (Universal Law Publishing, 2013).
81
Shanti v. State of Haryana AIR 1991, SC 1226.
82
83
Hari Singh Gour, Penal Law of India, (3) 3082 (Law Publishers (India) Pvt. Ltd, Allahabad, 2011)
84
State of Andhra Prades v. Raj Gopal Asawa, (2004) 4 SCC 470.
85
Rajayyan v. State of Kerela, AIR 1998 SC 1211.
86
Supra note 83.
83
done some overt act in relation to the offence. 87 However, it is not essential that must
be fulfilled under this provision to show that there was an agreement for payment of
dowry. 88
Section 304B besides, its own independent objective, is a synthesis of Sections

2 and 3 of the D.P.A. and Section 498A of I.P.C. Therefore, in order to invoke this
Section, invocation of Sections 2 and 3 of D.P.A. and Section 498A of I.P.C. is
essential and the ingredients of these Sections are ought to be satisfied.89
Essentials to Invoke Section 304B
 Death must be occurred by burning or bodily injury or under abnormal

circumstances. The legislature has applied its wisdom and used the phrase
―otherwise under normal circumstances‖, to avoid any kind of ambiguity or
confusion. The interpretation is enlarged in such a way that only death under
normal conditions is excluded from the ambit of Section 304.
 The death must occur within seven years of marriage. 90 It is the duty of the
91
prosecution to prove that the death was caused within seven years of marriage.
 The women must be subjected to cruelty or harassment, soon before her death.
This expression is used in a narrow perspective and in a limited and specific
sense as explained in Section 498A of I.P.C.92 This expression, ―cruelty‖ has to
further qualify another condition that it must be in connection with any demand
for dowry. Thereby, Sections 2 and 3 of D.P.A are inherently present.
 The cruelty must have been done in connection to any demand of dowry. Dowry
has the same meaning as defined under Section 2 of D.P.A. ―The term Dowry
under Section 2 is wide enough to include all types of properties, valuable
securities, etc., given or agreed to be given, directly or indirectly.‖93
87
Kans Raj v. State of Punjab, 2000 Cr LJ 2993.
88
Vidhya Devi v. State of Haryana, AIR 2004 SC 1757.
89
See B.M. Gandhi, Indian Penal Code 436 (Eastern Book Company, Lucknow, 2014).
90
Surendra Malik and Sudeep Malik, Supreme Court on Indian Penal Code, 1860, (3) 159 (Eastern
Book Company, Lucknow, 2012)
91
Ibid.
92
93
Supra. Note 28.
84
Liability under Section 304-B r/w Section 113B of Evidence Act
The provision of dowry death clearly states that liability of a person is

attracted if it is shown that a woman has died due to unnatural death, within seven
years of her marriage, was subjected to cruelty by her husband or relative of husband,
soon before her death, in connection to the demand of dowry. If all these essentials
are fulfilled than a presumption shall be taken by the court that such person has
caused her dowry death. It will be immaterial that such person is directly responsible
for her death or not94. So it can be concluded that merely by fulfillment of these
essentials, presumption of guilt is taken irrespective of the presence or absence of any
direct connection with death95.
No Conviction under 304B if ‘Cruelty’ is not proved96
If dowry is not demanded before or at the marriage or there is no mention of

ill-treatment of the deceased and no evidence of cruelty is produced than even the
death of a wife occurred in unnatural circumstances even within the seven years of her
wedding cannot attract conviction under Section 304B97.
It must be proved that the victim was subjected to such cruelty ‗Soon Before‘
her death. ‗Soon before the death‘ is a relative term and there is no strait jacket
formula that can be applied to determine the exact period which can be termed as
‗soon before‘ the death98. It would depend on the circumstances of each case and may
vary from case to case. Normally the interval between the death in question and the
concerned cruelty inflicted on the victim must not be much. 99 There must be a
proximate link between the effect of cruelty for dowry demand and the concerned
death.100 If the infliction of cruelty has become stale enough which can not disturb the
mental set up of woman concerned, it cannot be considered 101. But the term ‗soon
94
Hem Chand v. State of Haryana, (1994) 6 SCC 727.
95
K.N. Chandrasekhran Pillai, General Priciples of Criminal Law 589-590 (Eastern Book Company,
Lucknow, 2011).
96
Supra note 92.
97
Meka Ramaswamy v. Dasari Mohan, AIR 1998 SC 774.
98
K.I. Vibhute, P S A Pillai’s Criminal Law 606 (Lexis Nexis, Gurgaon, 2014).
99
100
Ram Jethmalani and D. S. Chopra, The Indian Penal Code, (2) 2491 (Thomson Reuters, Legal,
New Delhi, 2014)
101
Satvir Singh v. State of Punjab, AIR 2001 SC 2828.
85
before‘ is not a synonym for ‗immediately before‘102. In a related case of Uday
Chakraboty v. State of West Bengal103, where the wife of accused died within two
years of marriage as a result of burn injuries inflicted upon her, The Apex Court
accepted the whole period of two years as ‗soon before‘ her death and held the
husband guilty104.
The Charge under Section 302 and 304B may Co-exist
Sometimes, a question arises as to whether charge under Section 302, I.P.C.

can co-exist with the charge under Section 304B, I.P.C. The gist of the offence
punishable under Section 302 or the offence punishable under 304B is the same i.e.
the extinction of life in unnatural circumstances. Nothing is mentioned in any of these
two Sections to either expressly or impliedly exclude one Section if another of the two
is applicable. However, in practice, it is too difficult to prove the ingredients of
Section 302 and Section 304B of I.P.C. simultaneously. However, the charge under
both the Sections may co-exist, but this view looks improbable. The ingredients of
both the Sections are different; therefore, it is advisable to charge the person under
either of the Sections. By applying both the Sections simultaneously, a situation may
arise that the trial becomes vitiated because the prosecution cannot be allowed to
adopt a ―two version theory‖. 105
3.3.2 Abetment of Suicide (Section 306)
To combat the increasing menace of the dowry deaths, Criminal Law (Second
Amendment) Act, 1983 has provided a presumption. It states that where a suicide is
committed by a married woman within seven years of marriage, the court may
presume that her husband and in-laws had abetted her to commit suicide by virtue of
Section 113A of Indian Evidence Act, 1872. 106
It has been seen often that the victim of offences related to dowry commits
suicide due to persistent demands. In such a case, the prosecution has to prove-
 The deceased committed suicide.
102
103
AIR 2010 SC 3506.
104
Uday Chakraboty v. State of West Bengal, AIR 2010 SC 3506.
105
Supra note 6 at 26
106
Surendra Malik and Sudeep Malik, Supreme Court on Evidence Act, (2) 433(Eastern Book
Company, Lucknow, 2013)
86
 The accused instigated or abetted for committing suicide.
 Direct involvement of the accused in such abetment or instigation.
In a related case, Brig Lal v. Prem Chand107, the husband used to quarrel with
his wife and had been constantly demanding dowry and money from her. On one
unfortunate day she retaliated on these consistent demands of dowry and said that
death would have been a better option than such a miserable life. The husband
answered that he would be relieved if she would have died immediately. On listening
to this, the wife set her ablaze. The Apex Court convicted him for instigating his wife
to commit suicide.
In another case, State of Punjab v. Iqbal Singh.108, the husband was persistent
with his dowry demands. He would beat his wife, cause all sorts of harassments and
would permit her a life only under the shadow of his terror. This ultimately resulted in
the wife setting herself and her 3 children ablaze. The trial court held that the husband
willfully produced an atmosphere which forced the wife to do what she did and
recorded a conviction and sentence under this Section of 7 years of rigorous
imprisonment. The Supreme Court up held the conviction and the sentence.
Where a newly wedded wife unable to bear the harassment from her husband
to bring money from her parents set her ablaze and the accused husband stood nearby
not trying to save her, it was held that the accused was guilty of offence under Section
306. His acquittal was set aside.109
In another case, pressure for parting with ‘stridhan’ was made on the wife.
The accused was forcing his wife to transfer the land to his name which she had
received as a part of her ‗stridhan’ from her father. He concealed her letters. These
facts drove her to commit suicide. He was convicted under Section 498-A for the
offence of cruelty. On the same evidence, he was convicted under Section 306 r/w
Section 221, Cr PC.110
In cases of alleged abetment of suicide, the direct or indirect acts of instigation

to commit suicide must be proved. The mere fact that the husband or his relatives
107
AIR 1989 SC 1661.
108
AIR 1991 SC 1532.
109
State of Punjab v. Anil Kumar, 1992 Cr LJ 3131.
110
K. Prema S. Rao v.Yadla Srinivasa Rao, AIR 2003 SC 11.
87
have treated the wife with cruelty would not suffice. 111 If the accused has been
charged under Section 498A and 304B of I.P.C. but the evidence on record proved
him guilty under Section 306, even if no charge has been framed under Section 306,
the accused could still be convicted under Section 306.112
Where the wife had never complained to her parents that her husband or in-
laws maltreated her or inflicted torture or cruelty on her or even any such evidence
was also missing, merely the fact that she committed suicide after a couple of months
of her marriage, does not drag her husband or in-laws under Section 306113. Some
abetment is necessary to invoke this provision. 114
3.3.3 Misappropriation of Dowry amounts to Criminal Breach of Trust (Section

405)
To attract the penal liability under Section 405 of I.P.C., it must be established
that the accused had been entrusted with dominion over property which he is set to
have converted to his own use. 115 Criminal breach of trust can be committed in
respect of both movable and immovable properties. 116 If the in-laws of the
complainant retain her stridhan despite demand after death of her husband, Section
406 of I.P.C. and Section 3 and 6 of D.P.A. are attracted.117 If a woman entrusts her
stridhan property with her husband and in-laws and they misappropriate it or convert
it to their use, they are guilty of criminal breach of trust118. If there is no evidence to
show that there was entrustment of stridhan by wife to husband, mere statement of
wife that stridhan articles were laying in the house when she was turned out shall not
attract liability of husband for criminal breach of trust.119
When the husband or his relatives do not handover the gifts and ornaments
given to the bride, to her, these provisions are invoked. 120This offence requires that
there must be an entrustment of any individual with property or making a person
111
Mahender Singh v. State of Madhya Pradesh, 1996 Cri LJ 894.
112
Vinod Kumar v. State, 2005 Cri LJ (NOC) 222 (Uttar).
113
State of Punjab v. Kripal Singh, 1992 Cr LJ 2472(P&H)
114
Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, Ratanlal & Dhirajlal‘s The Indian Penal
Code (Wadhwa and Company, Nagpur, 2002).
115
Velji Raghavji Patel v. State of Maharashtra, AIR 1965 SC 1433.
116
R.K Dalmia v. Delhi Administration, AIR 1962 SC 1821.
117
Chancharapu Madhusudhan Reddy v. State of A.P.,2006 Cri LJ2978 (AP).
118
Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628.
119
120
K.T Thomas and M.A.Rashid, The Indian Penal Code 1003 (Lexis Nexis, Gurgaon, 2015).
88
dominion over some property.121 The person who has been entrusted over the
concerned property has either misappropriated or converted such property dishonestly
to his own use, or the person entrusted has used or disposed off such property. 122
The Supreme Court has held that reading this Section with Section 4 and
Section 6 of the ―Dowry Prohibition Act, 1961‖, the gifts, valuables or any ornaments
received in the marriage from the in-laws shall be handed over to the wife on being
driven out.123 If the husband fails to give such handover, he will be guilty under this
provision. 124
Where the wife was expelled out of the house by her husband who refused to
return the ‗stridhan‘, despite repeated requests and persuasions, it was held that
criminal breach of trust is a continuing offence and fresh cause of action accrues to
the wife till the return of the property. 125
If mother-in-law takes away the gifts, valuables or cash which has been given
to bride at the time of her marriage, she will be guilty for misappropriation of
‗stridhan’. Therefore, the mother-in-law was held to be liable for prosecution under
this offence.126 In a case where twenty five lakhs were offered for taking a divorce by
mutual consent, it was held that it does amount to an offence under this Section. Even
if any gifts are given to the bridegroom or his family as per any prevailing custom, it
would not amount to an offence under this provision.127
3.3.4 Cruelty by Husband or his Relatives (Section 498A)
―The Dowry Prohibition Act, 1961‖ was intended to curb the menace of
dowry. However, after few years, it was realized that the act had failed miserably due
to its inherent defects. Thus the ―Criminal Law (Second Amendment) Act, 1983‖
amended the Indian Penal Code and added a new Chapter XXA, containing Section
498A to satisfy the felt-needs of the time. 128
121
122
123
124
Supra note 32.
125
Balram Singh v. Sukhwant Kaur, 1992 Cr LJ 792 (P&H).
126
Bhaskar Lal Sharma v. Monika, (2009) 10 SCC 604.
127
128
Supra note 82.
89
Cruelty as an offence under Section 498A was inserted in the Indian Penal
Code by the ―Criminal Law (Amendment) Act, 1983‖. It envisages that where a
husband or the relatives of the husband subject the wife to cruelty, they shall be
punished with imprisonment for a term of upto 3 three years. The Section itself
explains the term ―cruelty‖ in the explanation (b), which states that any kind of
harassment of the woman with a view to compel her or any person related to her to
meet any unlawful demand of dowry or if such a harassment is done to pursue her to
commit suicide is termed as cruelty. 129
The concept of cruelty and its ambit along with Section 306 varies in
accordance with facts and circumstances of each case. It may vary from person to
person and also depends upon the social and financial status to which such individual
belongs. In many judgments, it has been held by the Apex Court that to attract the
culpability under Section 498A it is not essential that such cruelty must be physical.
Any kind of psychological torture or abnormality in behavior may attract the guilt of
130
committing cruelty or harassment in a particular case. The only requirements to
attract the Section 498A are as follows:
 The victim must be a married female.

 There must be a cruelty or harassment done to her either physical or mental.
 The cruelty or harassment must be connected to a demand of dowry or dangerous
to her life, limb or health; or sufficient to drive her to commit suicide.
 She must be subjected to such a cruelty either by her husband or his relatives. 131
Meaning of Cruelty under Section 498A

No comprehensive definition is given anywhere in the Act for the term
cruelty. ―The act of cruelty may be subtle, brutal, by words or gestures, by taunt, or by
mere silence depending upon the circumstances of a particular case.‖132 Cruelty may
be physical, emotional or mental harassment beyond endurance 133. In general, cruelty
may be explained as a repressible conduct, which is a deviation from the normal
129
130
Gananath Patnaik v. State of Orissa, (2002) 2 SCC 619.
131
Suvetha v. State, 2009 Cr LJ 2974.
132
Shriniwas Gupta & Preeti Mishra, Textbook on Indian Penal Code, 1860 483 (Asian Law House,
Hydrabad, 2016).
133
S.N. Mishra, Indian Penal Code 915 (Central Law Publications, Allahabad, 2016).
90
standard of marital relationship that causes an injury to the health and happiness of
other spouse.134
Constitutional Validity of the Offence of Cruelty
The constitutional validity of Section 498A has been challenged several times
on the grounds of violation of fundamental rights. 135 In Inder Raj Malik v. Mrs. Sunita
Malik136, the contention was taken that Section 498A is a violative of Art 14137 and
Art 20(2)138 of the Indian Constitution. It was argued that the offence dealt under
Section 498A is similar to the offence prescribed in Section 4 of Dowry Prohibition
Act. Therefore, it leads to double jeopardy and hence violates Art 20(2) of the
Constitution. Another argument put forth in this regard was that Section 498A imparts
arbitrary powers to the Courts and police therefore, it is violating Art 14 of the
Constitution. The Court has rejected both the contentions and held that there is a
difference between Sec 4 and Sec 498A because both the Sections differ in the gravity
of offence. Section 4 deals with a situation where there is a mere demand of dowry
not necessarily accompanied with cruelty or harassment. On the other hand, Section
498A covers those offences which are more aggravated and where cruelty or
harassment is done for demanding dowry. 139
Therefore, there is no question of double jeopardy or any violation of Art

20(2) of the Constitution. It was further held that discretion to interpret the word,
given to the Court cannot be termed as an arbitrary power and hence cannot be
considered as ultra vires to the Constitution. Again in Krishan Lal v. Union of
India140 It was held by the Court that husband and relatives of a married woman who
treat her with cruelty form a separate class and therefore it a reasonable classification
and there is no violation of Art 14 of the Constitution.
134
Bhagat v. Bhagat, AIR 1994 SC 710.
135
136
1986 Cr LJ 1510.
137
Supra note 63.
138
Supra note 61.
139
Supra note 100.
140
1994 Cr LJ 3472.
91
Cruelty by Persistent Demand of Dowry
It is not at all necessary that the cruelty done to the victim must be physical.
Any kind of psychological or mental harassment may attract culpability under Section
498A. In a case where the wife was time and again mentally tortured, taunted and a
repeated maltreatment was given to her after the first day of getting married, it was
held to be a cruelty against her. A quarrel occurred between the victim and her
husband just one day before her death and it drove her to commit suicide.
141
Presumption under Section 113B of Evidence Law was held to be invoked. In a
related case of State of Punjab v. Dal Jit Singh, four years after the marriage, the wife
was called upon to bring some dowry from her parents for sending her husband‘s
younger brother abroad. It could not be termed as dowry demand, but because she was
harassed for it and on account of this she became compelled to end her life, it was
held that an offence under Section 498A was made out.142
Section 498A is Attracted even if Acquisition under 304B, I.P.C. Fails.
Several times, the Apex Court has been confronted with question as to
whether a case under Section 498A, I.P.C. can be made out even if the acquisition
under Section 304B, I.P.C. failed. Both Sections deal with two different offences and
cannot be considered to be mutually inclusive.143 Cruelty is common to both the
Sections and must be proved to attract the liability of these offences.
In K.Prema Rao v. Yadla Srinivasa Rao144, the accused was charged and
prosecuted under Section 304B of I.P.C. for causing dowry death. But in this case, the
demand of dowry could not be proved and hence the liability under Section 304B,
I.P.C could not be made out. But on the basis of the evidence on record, the court
found that the accused had committed the offence of cruelty under Section 498A.
Therefore, the accused was convicted for cruelty under Section 498A and the offence
of abetting suicide under Section 306 r/w Section 113Aof the Evidence Act.
141
Pawan Kumar v. State of Haryana, AIR 1998 SC 958.
142
1999 Cr LJ 2723.
143
Heera Lal v. State (Govt. Of N.C.T), AIR 2003 SC 2865.
144
K.Prema Rao v. Yadla Srinivasa Rao, AIR 2003 SC 11.
92
Where the wife committed suicide and there were allegations of harassment
for dowry but the prosecution witness including parents of the deceased said that they
had no information about severity of harassment as could lead to suicide, the
conviction under Section 304-B was set aside but under Section 498-A was
maintained.
A Need to Revisit the Provision of Cruelty
The legislative intent behind inserting this provision was to save the wives
from any mental or physical harassment, torture and violence in their matrimonial
home. However, while examining the other side of the coin, it has been sometimes
realized by the courts that exaggerated version of the incidents and tendency of over
implications are reported in many complaints145. Unfortunately, it not only
overburdens the courts with huge number of false cases but also results in spoiling
social peace, harmony and thereby leads to unrest. It was held in Preeti Gupta146 case,
that legislature must take this aspect into the consideration and make required
amendments in the current provisions. 147
3.4 Cruelty related to Dowry as a Ground for Divorce under Hindu Marriage
Act, 1955
Section 13(1)(ia) of Hindu Marriage Act prescribes various grounds for

divorce and states that any marriage which has taken place either before or after this
Act has become operative, may be dissolved on the ground of cruelty. If either spouse
has treated the other spouse with cruelty, the aggrieved party may present a petition
on this ground for the dissolution of such marriage by seeking a decree of divorce.
The cruelty may be of any kind and any variety. If the facts and circumstances
in a case are sufficient to draw an inference that any dowry was demanded in the
given case, it amounts to cruelty. There is a prohibition of demanding any kind of
dowry under Indian legal system. Even after such prohibition, if any demand of
dowry is done from the wife, it is well covered within the ambit of cruelty and
thereby, entitles the wife to seek a decree for divorce on the ground of ‗cruelty‘. 148
145
M.P. Tandon, Indian Penal Code 744 (Allahabad Law Agency, Faridabad, 2015).
146
Preeti Gupta & anr v. State of Jharkhand, AIR 2010 SC 336.
147
Ibid.
148
P.S. Narayana, Laws relating to Dowry Prohibition, 19 (Gogia Law agency, Hyderabad, 2001).
93
In Sobha Rani v. Madhukar Reddi149, it was held that the harassment done to a
wife in order to compel her or persons related to her to fulfill any illegal demand of
dowry would constitute cruelty under Section 13(1)(i)(a) of Hindu Marriage Act.
Therefore, the appellant had been subjected to cruelty by her husband entitling her to
obtain a decree for divorce.
3.5 Law of Evidence and Offences Related to Dowry
It must be remembered that the offences related to dowry usually occur within
the enclosed four walls of a house and are committed secretly. Therefore it becomes
very difficult to obtain any direct evidence with regard to such offences. Therefore,
the legislature has tried to strengthen the hands of prosecution by inserting Sections
113A and 113B in the Evidence Act 150. Section 113A and 113B permit to raise a
presumption if the death of a woman has occurred within the seven years of her
marriage and certain facts are established by the prosecution.
3.5.1 Presumption of Abetment of Suicide
In the year 1983, Section 113Awas added in the ―Indian Evidence Act, 1872‖
under Section 7 of the ―Criminal Law (Second Amendment) Act‖, to give biting teeth
to Section 498A of I.P.C.151
The clear legislative intent behind the insertion of this Section was an effective
implementation of Section 498A and to achieve desired results of prevention of
dowry.152 Woman has acted as a mute epitome of sufferings since ages. She has been
reluctant to pen her mouth against any crime or harassment done to her by her own
family members. To protect her from the initial hardships of criminal trial and to
honour her dignity, this provision has been introduced ignoring the fundamental
principal of ―burden of proof‖ on the prosecution. Section 113Ais a boon as it relieves
the victimized woman from the complex technicalities of the law. The prime objective
behind enacting this provision was to eradicate the evil of dowry and to make sure
that married women must lead a dignified life in their matrimonial homes. 153
149
AIR 1988 SC 121.
150
Paras Diwan and Peeyushi Diwan, Law relating to Dowry, Dowry deaths, bride Burning, Rape and
related Offences 116 (Universal Law Publishing Co.Pvt.Ltd, Delhi, 1997).
151
A.N. Saha, Supreme Court on Criminal Law, 2408 (Ashoka Law House, New Delhi, 2011)
152
153
Krishan Lal v. Union of India, 1994 Cr LJ 3472
94
Retrospective Effect of Section 113A
Section 113Aof Evidence Act read with Section 498A of Indian Penal Code
makes it clear that these two statutes permit to draw the past instances of cruelty by
necessary implication. Since it is retrospective in operation even in respect of suicide
committed prior to 25th December 1983, presumption of abetment of suicide can be
invoked. 154
The phrase used ―within a period of seven years of marriage‖ and the
―Explanation” added thereto implies that Section 498A of I.P.C. and Section 113Aof
the Evidence Act, include the past events taken place before the date of
amendment.155
There are three pre-requisites for invoking presumption under Section 113A:
 The suicide must be committed within the time period of seven years of the
marriage.
 Her husband or her in-laws must have subjected her to cruelty as defined under
Section 498A of I.P.C.
 The cruelty shall be established having regard to the other circumstances of the
case.
Whenever, there comes a question before the court of law that whether the
husband or any of his relative has abetted the suicide of a woman, certain facts must
be established to invoke Section 113A. Firstly, it has to be established that the suicide
has taken place within a period of 7 years of her marriage. Secondly, she was
subjected to cruelty by her husband or his relatives. On establishment of these facts by
the prosecution, the court may take a presumption that the husband or such relative of
the husband is guilty of abetting the suicide of such woman. 156 Section 113A may
apply retrospectively and is also applicable in the cases where the abetment of suicide
was done prior to the enactment of this provision in the Evidence Act. 157
154
Gurbachan Singh v. Satpal Singh AIR 1990 SC 209.
155
Vasanta Tulshiram Bhoyar v. State of Maharashtra, 1987 Cr LJ 901.
156
Jagdish Chand v. State of Haryana, 1988 Cr LJ 1048 cited at Batuk Lal, The Law of Evidence
451(Central Law Agency, Allahabad, 2010).
157
Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209.
95
3.5.2 Presumption as to Dowry Death
Section 113B of Indian Evidence Act was inserted by the Amendment Act of
1986. The gruesome crime of dowry death is usually committed within the four walls
of the house, the act is generally manipulated in such a way that it may seem to be
either suicide or accidental death. 158 Therefore, it is almost impossible for the
prosecution to produce evidence or witnesses. Thus, the legislature was compelled to
introduce such a ―presumption‖ against the accused and therefore Section 113B was
inserted simultaneously with Section 304B of I.P.C. .
Under Section 113B when it is shown that soon before the death, the woman
had been subjected to cruelty or harassment by the accused for the dowry the court
shall presume that the accused had caused the dowry death and the burden is on the
accused to rebut the presumption.159
Application of Section 113B
Section 113B only applies when the question is whether a person has
committed dowry death of a woman and it is further supplemented by two facts 160:
 That soon before death, the woman has been subjected to cruelty or harassment
by such person.
 Such cruelty or harassment was in connection with any demand for dowry.
Whenever these facts are established by evidence, the presumption of Section

113B shall apply on the offence committed under Section 304 of I.P.C. .161
In Tarsem Singh v. State of Punjab162, the Supreme Court held that presumption under
Section 113B is one of law. The presumption under Section 113B shall be raised only
on the proof of the essentials given under Section 304B of I.P.C.163 This presumption
can only be raised, once all the ingredients of dowry death are proved.164
158
M.Z. Khan and Ramji Ray, ―Dowry Death‖ 45 TIJSW 3 (Oct. 1984) available at:
http://ijsw.tiss.edu/collect/ijsw/archives/HASH019d/50507750.dir/doc.pdf (Visited on July 20,
2017).
159
Batuk Lal, The Law of Evidence 452 (Central Law Agency, Allahabad, 2010).
160
161
162
AIR 2009 S C 1454.
163
S. K. Malik, An Exhaustive Commentary on The Indian Evidence Act, 1872, 1261(Delight Law
Publishers, 2009)
164
B.M. Prasad and Manish Mohan, Ratanlal and Dhiraj Lal The Law of Evidence 564 (Lexis Nexis ,
2015).
96
The expression ‗soon before‘ occurring in Section 113B, 304B does not
indicate any fixed period but applies promising test. A proximal connection must exist
between the effect caused by cruelty for demanding dowry and the death of the
victim. 165
3.5.3 Dying Declaration in Dowry Death
The term ‗dying declaration‘ means a statement given by a dying person at the
time of his or her death. It is regarding the cause of that person‘s death or regarding
the chain of circumstances that ultimately resulted in that person‘s death. A question
has been several times raised before the Court of Law that whether a dying
declaration can become the sole basis of conviction or not. It may form the sole basis
of conviction if there is a complete absence of any doubt and if such a statement has
been recorded exactly in the manner prescribed by the law. It must inculcate full
confidence regarding its truthfulness and accuracy. It amounts to miscarriage of
justice if the dying declaration is recorded if in a case. The major reason is that
usually in serious crimes, very often the victim is the sole eye witness and non
recording of statement in such cases would result in non availability of significant
evidence before the Court of Law. No cross examination is possible of the person who
has made such statement or dying declaration as such a person is already dead.
Therefore, the court must apply a judicious mind to ascertain the reliability and
dependability upon a dying declaration.
In dowry deaths usually the evidence taken into consideration is that of the
parents, friends or the close relatives of the deceased. If deceased has made certain
statements to her parents or relatives about her harassment, maltreatment or cruelty
done to her, such statements also assume significance. Moreover, the events of cruelty
or harassment already known to the persons who are related with the deceased are
also taken into consideration by the court. Even letters written to friends, relatives,
etc. expressing the incidences of harassment or cruelty done to her may be taken as
material evidence. There is no presumption in law that the relatives of the deceased
would make false statements.166
165
Batuk Lal, Batuk Lal’s Law of Evidence 1217 (Orient Publishing Company, 2004).
166
P. Bikshapathi v. State of A.P., 1989 Cri LJ 1186.
97
Dying Declaration as a Piece of Evidence
In the cases of dowry death, especially in bride burning, dying declaration has
its own sanctity as a piece of evidence. Very often it is the last piece of evidence
which is relied upon by the court when submitted by the prosecution in support of
charge of bride burning.167 There is a set notion about dying declaration i.e. ―The
tongues of dying men enforced attention like deep harmony; where words are scarce,
they are seldom spent in vein; for they breathe the truth that breathe their word in
pain.‖168
Admissibility of dying declaration of a severely burnt victim

It has been observed many times that the dying declaration and its
admissibility is questioned on the ground that the victim who is severely burnt lacks
mental stability to give a correct statement. Sometimes it is also argued that such a
victim is not able to speak in such a clear manner that can be understood properly and
thereby accepted by the court169. In a Supreme Court Judgment, medical opinion was
brought that due to burn injuries on the vocal cords of the victim; there is possibility
of difficulty in speaking clearly. 170 But the Court held that if the recorded statements
are consistent and the medical evidence and ocular evidence simultaneously establish
the occurrence of torture, then the guilt is proved.171 Where the defence questioned
the admissibility of the dying declaration given by the victim on the ground that since
her larynx and trachea were burnt and it was impossible for her to speak anything; the
court still accepted the dying declaration on the medical opinion which stated that
despite the injuries a patient can be able to speak but it may not be very clear. 172
3.6 Forensic Investigation Procedure in Dowry Deaths
Most of the dowry deaths occur due to burns, bodily injuries or death caused
in unnatural circumstances. Majority of which are poisoning, hanging, drowning,
suffocation due to strangulation, starvation or fatal wounds 173. Since the death is
167
168
169
Rajeev Kumar v. State of Haryana, AIR 2014 SC 90.
170
Sripada Venkata Joga Rao, Sir John Woodroffe &Syed Amir Ali‘s Law of Evidence, (II) 1802
(Buterworths, New Delhi, 17th Edn)
171
Deen Dayal v. State of U.P., AIR 2009 SC 1238.
172
Rajeev Kumar v. State of Haryana, AIR 2014 SC 907.
173
Radhika. R. H. and Ananda.K, ―An Autopsy Study of Socio-Etiological Aspects in
Dowry Death Cases‖ 33 JIAFM 3 (2011) available at: http://medind.nic.in/jal/t11/i3 /jalt11i3p
224.pd f (Visited on July 20, 2016).
98
usually caused inside the enclosed four walls of the house, that too a matrimonial
house where the witnesses present are either the prime accused, co-accused or the
relatives of accused. Therefore, it becomes a challenge for the investigating bodies to
collect evidence and find genuine witnesses. Therefore, in such cases, physical
evidences, circumstantial evidences as well forensic evidence play a major role in
investigation and administration of justice. 174
In a study conducted by Department of Forensic Medicine in Aligarh, it was

found that majority of dowry deaths have occurred within the first 3 years of
marriage, most of them were Hindu females and living in rural areas 175. The main
causes of death were burning, poisoning, hanging and strangulation. It was also
observed that suicide was the most common manner in such cases 176. The higher rate
of death due to burning was also observed in newly married women and was often
attributed with cooking. In the cases of suicide, setting oneself on fire is the most
common method for women due to the easy availability of kerosene oil, gas stove,
matchsticks etc. The in-laws also prefer to burn the bride in order to hide the torture
injuries and destroy the circumstantial evidence 177.
The major essential to prove the offence of dowry death 178 is death caused in
abnormal circumstances which factually means suspicious circumstances. In many
cases, the cause of death appears to be mysterious and even some times the dead
bodies are cremated without medical examination. If the death is proved as merely
accidental, no prosecution under Section 304B can be brought. Therefore, it becomes
really crucial for the investigating authorities to establish the suspicion or abnormality
in the cause of death. Such an effective investigation can be achieved with the help of
forensic expertise.
174
O. P. Murty, ―Dowry Crimes Investigation‖4 IJLTLM 13(2002) available at: https://www.resea-
rchgate.net/publication/260955963_Dowry_crimes_investigation (Visited on August 10, 2017).
175
Afzal Haroon, ―A Study of Epidemiological Profile of Dowry Death Victims in
Aligarh‖ 3 IABMCR 7 (2017) available at: https://pdfs.semanticscholar.org/ b1aa/ed70a31e3
cb856b0ee2507c851ed25538a6d.pdf?_ga=2.20997243.1143021006.1578113541-
1292684471.1578113541(Visited on March10, 2019).
176
Supra note 173.
177
Supra note 175.
178
Section 304B, The Indian Penal Code, 1860.
99
Some of the significant points that need to be thoroughly examined to
ascertain the cause of death are as follows:
Death Caused Due to Burn Injuries
The factors which need to be analyzed in the death caused of burn injuries are
time and date of occurrence, degree/depth of burn, whether the family members took
the victim to the hospital or not, to ascertain that whether any combustible fuel,
substance or kerosene was found at the site of occurrence; the burn has occurred
before death or after the death179.
In a related case of Prem Kanwar v. State of Rajasthan where the husband and
in-laws portrayed that the victim had died due to burning but the father of the victim
claimed that she was harassed and abused for dowry, medical evidence proved to be a
deciding factor. It was found in the medical evidence that although the whole body
was burnt but the skull bones were already broken before being burnt. This was
sufficient evidence to show that she was killed before being burnt. The Apex Court
sensitively relied upon the medical evidence, upheld the accused guilty and observed
that the persistent harassment and injuries caused thereby were sufficient to prove the
greed of the accused for dowry. 180
Death Caused by Suffocation/ Hanging
The important factors to be determined in death caused by suffocation/

hanging are bruises/nail marks/any injury around the neck; the condition of eyes,
tongue, lips, dripping saliva etc.; marks of physical scuffle, bluish discoloration of the
skin, any kind of haemorrhage ; to identify whether the hanging has occurred before
death or after the death.
Therefore, in a case where the death was stated to be caused by snake bite but
it was contradicted by the medical evidence stating that the victim has died due to
asphyxia caused by strangulation of neck, the court upheld the guilt of the accused. 181
179
Dipa Dube and Mukesh Yadav, ―Medical Evidence in Dowry Deaths: An Evaluation by Indian
Courts‖ 37 JIAFM 299 available at: https://www.researchgate.net/publication/ 283173205_
Medical_Evidence_in_Dowry_Deaths_An_Evaluation_by_Indian_Courts(Visited on Jan 13, 2017).
180
AIR 2009 SC 1242
181
Trimukh Maroti Kirkan v. State of Maharashtra, (2008) 8 SCC 456
100
In another case decided by the Karnataka H.C., it was shown by the defence
that due to epilepsy she fell from the stairs, sustained injuries and died. But the Court
relied upon the medical expert opinion that the brain matter was shrunken, thorax
region was congested and thyroid cartilage was broken. Therefore, the death was
caused due to asphyxia as a result of hanging. 182
Death Caused as a Result of Poisoning
The major observations to be examined in death caused by poisoning are;
Mouth odour of the victim , bluish discoloration of the skin, condition of eyes, nails,
fingers, tongue etc; presence of any form around the lips; substances present in
stomach/intestines etc. The medical evidence upon which the court relies must be
based on legal material on record.
In the case of Chhotan Sao, it was alleged that the victim was beaten up and
compelled to consume poison resulting in her death. The court acquitted the accused
on the ground that ―The non-examination of the doctor who conducted the post-
mortem coupled with the failure to produce the Forensic Laboratory Report regarding
the examination of viscera of the deceased leaves a gaping hole in the case of
183
prosecution regarding the nature of the death of the deceased.‖ Where the death
was claimed to be caused by poisoning but a specific chemical testing had not
revealed any poison. However, the medical evidence clearly established strangulation
of neck. The Court relied upon the forensic report and convicted the accused 184.
Death Caused by Drowning
Where the victim has died due to drowning; clothes of the victim, any
presence of foam inside the mouth and nose, eyes and tongue condition, any existence
of mud, weed, etc. causing cataleptic rigidity, bluish discoloration of the skin,
presence of any goose bumps on the body, bruises on the body, stiffening of joints
and muscles of the body and post mortem staining etc must be examined. 185
In a related case of State of Karnataka v. M.V.Manjunathegowda186, the
husband cooked up a story that the wife died due to slipping and thereby drowning
into the well, while she went to fetch water. But the medical evidence revealed five
182
State of Karnataka v. Choudegowda, 2007 Cri L J 2812.
183
Chhotan Sao v. State of Bihar, AIR 2014 SC 907.
184
Supra note 181
185
Supra note 179.
186
AIR 2003 SC 809.
101
fractures in the skull caused shock and haemorrhage resulting in her death. Along
with the medical evidence there were other circumstantial evidences on record which
were clearly indicating that she was subjected to cruelty by the husband for the
demand of dowry. The Court convicted the husband under the charge of dowry
death.187
In another case, the husband and in-laws contended that the death of the wife
was accidental and caused due to falling down into the well. But the prosecution
alleged that the dead body had been thrown into the well due to the non fulfilment of
dowry demands. The medical expert opined that the death was caused due to coma
occurred by a head injury which was possibly inflicted by some blunt weapon. Such
injuries could not possibly have been caused in the well as it was kuccha well and
there was water in the well. It was further found that no water was present inside the
windpipe or lungs. The court relied upon the medical evidence, opined that the body
was dumped into the well after the death and therefore confirmed the conviction for
dowry death.188
3.7 The Protection of Women from Domestic Violence Act, 2005
Wife battering as well as physical or verbal abuse occurs very commonly to

the women in India within the four walls of her own house. With an objective to
provide a civil law remedy for protecting the women from any kind of domestic
violence, The Protection of Women from Domestic Violence Act, 2005 was
enacted.189 This Act includes any kind of abuse or the threat of abuse to the woman.
Such an abuse may be physical, sexual, verbal, emotional or economic. Dowry is
peculiar to Indian conditions that oppress married and unmarried women, giving
altogether newer dimensions to the concept of domestic violence across the globe. 190
Any kind of act of harassing a woman by unlawfully demanding dowry from

her or her relatives is also covered under the definition of ‗domestic violence‘.
187
Supra note 178.
188
Deen Dayal v. State of U.P., AIR 2009 SC 1238.
189
Anderson, Siwan , "The Economics of Dowry and Brideprice" TJOEP 21(2007) available at:
https://econ.sites.olt.ubc.ca/files/2013/05/pdf_paper_siwan-anderson-economics-dowry-
brideprice.pdf (Visited on Jan 13,2017).
190
See Section 3(b) and Section 31(3), The Protection of Women from Domestic Violence Act, 2005.
102
Therefore, this act provides an additional protection to the dowry victims besides The
Dowry Prohibition Act.191
All kinds of abuse may it be physical, psychological, verbal, mental, sexual or

economic are covered within the ambit of Domestic Violence Act and forms a subset
of the anti-dowry laws to the extent it is one of the reasons for domestic violence. 192.
Depriving the victim from all or any economic resources to which she is entitled by
law or custom including, ‗stridhan’ amounts to an ‗economic abuse‘. It further covers
any kind of restriction upon the access to resources or facilities of which a victim has
right to use or enjoy by virtue of the domestic relationship. Any act of causing bodily
pain, injury, threat or any harm to life, limb or health of the victim amounts to
‗physical abuse‘. Committing any kind of assault, coercion, intimidation or use of
criminal force is included in physical abuse.
Section 3 of Domestic Violence Act includes all kinds of harassment, injury or

harm caused to a woman to force her to fulfill any unlawful dowry demand within the
ambit of domestic violence. 193 Many recent studies suggest close proximity between
demands for dowry and domestic violence. There are more common chances of abuse
or violence towards a wife when her husband and in-laws believe that the dowry
194
given in her marriage or subsequent to the marriage is inadequate. Following
remedies are provided under the Act:
 A person may be prohibited to commit domestic violence by passing protection

orders against that person.
 A person committing domestic violence may be dispossessed out of a shared
household by passing residence orders.
 Custody of a child may be granted by passing custody orders.
191
What protection does a woman have from domestic violence, available at: https://www.kaanoon.
com/indian-law/what-protection-does-a-woman-have-from-domestic-violence (Visited on Jan 13,
2017).
192
193
Section 3, The Protection of Women from Domestic Violence Act, 2005.
194
Mahek Singh, ―Dowry as a factor of violence in Marriage: A study of Women seeking help in
Family Counseling Centers in Chandigarh‖ 2 IJOAIRT 41 (2013) ) available at:
http://www.ijoart.org/docs/Dowry-as-a-factor-of-violence-in-Marriage-A-study-of-Women-
seeking-help-in-Family-Counseling-Centers-in-Chandigarh.pdf (Visited on January 11, 2017).
103
 A person who has committed domestic violence may be directed to pay the
compensation by passing compensation orders.
Even if a woman is threatened by not giving her food to eat or goods related to
her daily needs, it may amount to domestic violence. Moreover, if a husband has
harassed his wife for demanding dowry from her or her relatives, it is also covered
under domestic violence. 195
3.8 Procedure of Dowry related Offences to be dealt under Criminal Procedure

Code
The offences related to dowry are covered under the provisions of Dowry
Prohibition Act, 1961 and Indian Penal Code, 1860. But the procedure to file a
complaint and taking cognizance of such offences is dealt under Cr PC. After the
insertion of Section 498A of I.P.C., a new provision of Section 198A196 was added in
the ―Criminal Law (Amendment) Act, 1983‖ to ascertain cognizance of the offence of
cruelty or harassment of women committed under the newly added Section 498A of
I.P.C.
It prescribes that no court shall take cognizance of an offence punishable
under Section 498A of I.P.C. except upon a police report of facts which constitute
such offence or upon a complaint by the person aggrieved or by her father, mother,
brother, sister and other near relatives. It gives locus standi to the father, mother and
other near relations of the woman who is or has been the victim of such cruelty or
harassment to complain. 197
Another new provision i.e. Section 198B was further inserted by the
Criminal Law (Amendment) Act, 2013 on the recommendations of the Justice
195
Supra note 191.
196
Section 198 A, The Code Of Criminal Procedure, 1973.
Section 198A reads as- Prosecution of offences under section 498A of the Indian Penal Code- No
Court shall take cognizance of an Offence Punishable section 498A of the Indian Penal Code except
upon a police report of facts which constitute such offence or Upon a complaint made by the person
aggrieved by the offence or by her father, mother, brother, sister or by her father' s or mother' s
brother or sister or, with the leave of the Court, by any other person related to her by blood,
marriage or adoption.
197
After Section 198A of the Code of Criminal Procedure, the following Section shall be inserted,
namely— Cognizance of offence
Section198B- No Court shall take cognizance of an offence punishable under section 376B of the
Indian Penal Code where the persons are in a marital relationship, except upon prima facie
satisfaction of the facts which constitute the offence upon a complaint having been filed or made by
the wife against the husband, Criminal Law (Amendment) Act, 2013.
104
J.S.Verma Committee.198 A new offence in I.P.C. under Section 376 was created
whereby sexual intercourse by a husband upon his wife during separation has been
made punishable. 199 Section 482 preserves the inherent powers of the High Court.200
In Preeti Gupta v. State of Jharkand201, a complaint had been lodged by the wife
against her husband, in-laws, a married sister-in-law and unmarried brother-in-law on
the grounds of harassing her for dowry demand. However, no specific allegations
were found or proved against the sister-in-law and unmarried brother-in-law. It was
observed that they were implicated in the complaint merely with an objective to
unnecessarily rope them, harass and humiliate them. Therefore, the Court had quashed
the complaint and considered it as an attempt to abuse the process of law.
3.9 Dowry Prohibition and India’s Obligation under International Law
UN has always endeavoured to ensure the equality of women in legal as well

as social sphere. Various conventions have been introduced by the United Nations to
raise the position of the women and it has also formed the commission on the Status
of Women in 1946. Even after that UDHR202 was adopted in the year 1948.
Subsequently, the Convention on the Political Rights of the Women and Convention
on the Nationality of Married Women were put forward in the years 1948 and 1953
respectively.
Another significant declaration on Elimination of Discrimination against

Women was adopted in 1967. But the major step taken forward for the welfare of
women was Convention on the Elimination of All Forms of Discrimination against
Women in 1979. After that Declaration on the Elimination of Violence against
women came in the year 1993. Another optional protocol which was related to the
198
Ibid.
199
Section 376B Sexual intercourse by husband upon his wife during separation- Whoever has sexual
intercourse with his own wife, who is living separately, whether under a decree of separation or
otherwise, without her consent, shall be punished with imprisonment of either description for a term
which shall not be less than two years but which may extend to seven years, and shall also be liable
to fine.
Explanation.— in this section, "sexual intercourse" shall mean any of the acts mentioned in clauses
(a) to (d) of section 375.
200
Section 482- Saving of inherent powers of High Court. Nothing in this Code shall be deemed to
limit or affect the inherent powers of the High Court to make such orders as may be necessary to
give effect to any order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice., The Criminal Procedure Code, 1973.
201
AIR 2010 S.C. 3363.
202
Universal Declaration on Human Rights available at: https://www.un.org/en/universal-declaration-
human-rights/(Visited on 22August, 2017)
105
CEDAW203 in the year 1999 along with that UN has also established a commission on
the status of the women. The practice of dowry and dowry death is not only violating
the subsisting local laws of country but these are also violating the International
Human Rights Law.
3.9.1 ICCPR and Dowry Related Violence
The ICCPR204 was formed with an aim to protect civil rights and political
rights of the individuals. ICCPR adjudicates through two means i.e. inter-state
complaints and self reporting by member states. Besides that an Optional Protocol is
available which provides an individual petition procedure. Unfortunately the remedy
for enforcing rights under the ICCPR is not available to the victims of dowry crimes
and their families in India because the first two means can only be utilized by the
States and the individual petition procedure is not available since India being not a
party to the Optional Protocol.
But it does not indicate that the dowry deaths are not the violation of the right
to life which is an inherent right given under Article 6(1) of ICCPR. It clearly
provides that right to live is the inherent and foremost right of every human being. It
also mandates that no human being shall be deprived of one‘s life arbitrarily. Dowry
death is an arbitrary rather criminal deprivation of right to life of a woman; therefore,
by depriving her of her right to life, all other human rights will become meaningless.
The state has already penalized it by making provision under its own penal laws 205.
Consequently, there is an express right given to the Indian women under Article 6(1)
which is to be protected by the Indian state against dowry related murders. While
there is no general rule of international law that requires treaties to intervene in
domestic law, Article 6(1) requires that the right to life be protected by law. India has
enacted the laws prohibiting dowry and penalizing dowry deaths and therefore
fulfilled this requirement.
203
Convention on the Elimination of Discrimination against Women available at: https://www.ohchr.
org/documents/professionalinterest/cedaw.pdf (Visited on 21 January, 2017)
204
International Covenant on Civil and Political Rights, available at: https://treaties.un.org/
doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf (Visited on 25 January,
2017)
205
Supra note 178.
106
But Article 2(1) of the ICCPR further states that the parties to the Covenant
are under strict obligation to respect and ensure the rights recognized in the Covenant.
Although India has fulfilled the first obligation to respect the right to life in
connection with dowry deaths because government does not perpetrate these crimes
but the second obligation to ensure the enjoyment of this right to life in all possible
measures is not yet fulfilled. The reason being is that the government has failed
ineffectively to curb the increasing number of dowry deaths by taking preventive
measures. Henceforth, it can be critically stated that India has failed to protect the
right to life of Indian women in respect to dowry death in violation of the obligations
of Article 2 under the ICCPR.
Practically we lack effective remedies for the few surviving victims of dowry
deaths and their families. The police, prosecutors and courts have failed to create a
deterrent effect while enforcing the laws prohibiting dowry or those punishing dowry
crimes. 206
The measures taken under Article 2(1) must be adequate and effective. Thus it
requires India to take effective measures to protect life of individuals, including the
prevention of killing of wives by husbands or in-laws in the disputes related to dowry.
Although India has legislated the laws in this regard and has taken the positive
measures but all the possible measures have not been taken nor have such measures
been proved to be adequate or effective. According to NCRB data in India, the cases
of dowry deaths are on continuous increase every year.
3.9.2 CEDAW and the Impact on Dowry related Violence on Women
UN general assembly has adopted the CEDAW on 18th December 1979. In

September 1981, it became an International treaty after the ratification given to it by
20 countries. Within 10 years the convention has spread across the world as almost
100 nations have ratified it and agreed to enforce its provisions. This convention was
a remarkable step to monitor the actual prevalence of women‘s right and their
promotion. It has aimed to highlight and introspect those all areas where women are
denied equal rights with men. In 1994, India has ratified the CEDAW207 which aims
206
206
Id. at 72.
207
Supra note 203.
107
at eliminating all kinds of discriminations against the females to give a platform for
them of equal participation in public life.
Article 1 defines ―discrimination against women‖ as any kind of distinction or

restriction on the basis of sex or on the basis of equality of women with men including
human rights of women208. The inclusions in the term ‗discrimination‘ are further
clarified by recommendation 19, which acknowledges gender based violence as
another form of discrimination209. It includes any kind of physical, psychological or
sexual violence occurring in the family including dowry related violence, wife
battering, etc.
Article 2(f) 210 of the convention directs the states to frame policies for
eliminating discrimination against women and to modify or abolish every kind of
customs and practices which constitute such discrimination. Dowry is also a custom
which not only discriminates the women but is also responsible for various kinds of
atrocities related to dowry. Therefore, our nation must take due care to abolish and
eradicate this evil practice with most effective measures.
Article 5(a) 211 further provides that state must take measures to modify social
and cultural patterns of conduct to eliminate all customary practices which are based
on the superiority of men over women.
Article 16212 provides that it is the duty of the state to ensure equality of men
and women in marital relations. Article 16(c) 213 further provides same rights and
responsibilities of men and women during marital relation and even at its dissolution.
208
Article 1, Convention of the Elimination of all forms of Discrimination Against Women, available
at: https://www.ohchr.org/documents/professionalinterest/cedaw.pdf (Visited on 21 January, 2017)
209
Recommendation 19, Convention of the Elimination of all forms of Discrimination against Women,
available at: https://www.ohchr.org/documents/professionalinterest/cedaw.pdf (Visited on 21
January, 2017).
210
Article 2(f), Convention of the Elimination of all forms of Discrimination Against Women
January, 2017).
211
Article 5(a), Convention of the Elimination of all forms of Discrimination Against Women
January, 2017).
212
Article 16, Convention of the Elimination of all forms of Discrimination Against Women available
at: https://www.ohchr.org/documents/professionalinterest/cedaw.pdf (Visited on 21 January, 2017).
213
Article 16(c), Convention of the Elimination of all forms of Discrimination Against Women
January, 2017).
108
3.9.3 United Nations and India: Combined Efforts on Eradication of Dowry
A special rapporteur Christ of Heyns, who came from U. N, has aptly

remarked that a contributing reason behind the persistence of dowry deaths in India is
the social sanction behind it. Even sometimes, the police do not bother to treat such
murders as crimes. U.N has considered it very common in some regions of patriarchal
India that the brides are killed by husbands or in-laws for demanding money and such
214
demands not getting fulfilled. Heyns has quoted the record of NCRB of the year
2010 that 8,391 brides were murdered over dowry-related issues in 2010 which means
at least one bride every hour. Despite a legal prohibition on this custom, it is still
widely practiced and often leads to such a mental and physical harassment which
drives the woman to commit suicide. Very often, the brides are often burnt alive in so-
called ―stove burnings‖ after pouring kerosene and set her ablaze. 215
Again in 2008, a round table was organized between the Ministry of Women
and Child Development216 and the United Nations Development Fund for Women on
the redrafting of Section 498A of I.P.C. and its increasing misuse. The discussion was
an outcome of various campaigns which have taken place against the misuse of this
provision. However, after analyzing the NCRB data of the year 2004-2007, they came
to the conclusion that the cases of dowry deaths and dowry related offences were on
constant increase. Therefore, there was a consensus on the outcome that such
campaigns against the misuse of Section 498A lack substantive basis.
3.10 Need to Reform Laws related to Dowry with Changing Dimensions of

Society
The violence and crimes against women have always been a matter of great
concern for the legislature. Not only the laws related to gender justice and protection
of women, are time to time passed but such laws are also reviewed periodically.
Various amendments are suggested and incorporated in the laws affecting women to
meet the emerging needs of society as well as nation. The occurrence of ‗dowry
214
Nita Bhalla, Cultural killings of women have social sanction in India - U.N., Available at:
https://in.reuters.com/article/india-women-honour-killing/cultural-killings-of-women-have-social-
sanction-in-india-u-n-idINDEE8310GP20120402 (Visited on June 20, 2019)
215
Ibid.
216
Ministry of Women and Child Development, available at: https://wcd.nic.in/(Visited on July 10,
2019)
109
offences‘ is one such manifestation of imbalanced power equations and gender
violation, to which the married women are subjected. 217
Section 304B of Dowry Death and Section 498A were added under which any
cruelty committed by the husband or in-laws were penalised with a sentence of up to
three years by ―Criminal Law Amendment Act, 1986‖.218 In 1983, the necessity for
inserting of these offences had been strongly realized by the Law Commission in its
91st Report.219 Again Section 113A and Section113B of the Evidence Act were
inserted for curbing the increasing rate of dowry murders. The major objective behind
these insertions was to overcome the challenges faced by the prosecution to prove the
offence by providing a presumption.220Section 306 also covers the aspects of
abetment of suicide of married women by husband and in-laws. It states that where a
suicide is committed by a married woman within seven years of marriage, the court
may presume that her husband and in-laws had abetted her to commit suicide by
virtue of Section 113A of Evidence Act.
The socio-cultural reasons are undoubtedly responsible for the failure of the
law to combat the problem but another aspect is that in the provision of dowry death
there are still some drawbacks in drafting the substantive law and procedural aspects
like that of difficulty in gathering the evidence for convicting the main culprit. When
poor or middle class parents cannot give their daughters an expected dowry in such
situations, very often the bride suffers cruelty and harassment after her marriage for
not bringing expected dowry. Even many times, such cruelty results in dowry death.
In such cases it is evident that no complaints were made in the initial stage of
demanding of dowry or even after the marriage of the bride. The cases of dowry
deaths or suicide where brides end their lives than reporting such cases to the police
clearly question the lack of faith on legal framework for dowry prohibition and failure
of Anti-Dowry laws. Again many times the prime accused is acquitted by the courts
as the charges are not proved or due to inadequate evidence.
217
Supra note 9 at V.
218
See Section 304B and Section 498A, Indian Penal Code, 1860.
219
1983).
219
Supra note 178.
220
Kunhiabdulla v. State of Kerela, AIR 2004 SC 1731.
110
It must be remembered that the offences related to dowry usually take place
within the enclosed four walls of houses where it is not easy to gather any
independent and direct evidence related to the commission of the offence. Therefore,
the law makers have tried to strengthen the hands of prosecution by introducing
Sections 113A and 113B in the Evidence Act 221. Section 113A and 113B permit a
presumption to be raised if certain foundation facts are established and the death of
women has been caused within seven years of marriage.
Section 113B of Indian Evidence Act was inserted by the Amendment Act of
1986. The gruesome crime of dowry death is usually committed within the four walls
of the house, the act is generally manipulated in such a way that it may seem to be
either suicide or accidental death. 222 Therefore, it is almost impossible for the
prosecution to produce evidence or witnesses. Thus, the legislature was compelled to
introduce such a ―Presumption‖ against the accused and therefore Section 113B was
inserted simultaneously with Section 304B of I.P.C. Under Section 113B when it is
shown that soon before the death, the woman had been subjected to cruelty or
harassment by the accused for the dowry the court shall presume that the accused had
caused the dowry death and the burden is on the accused to rebut the presumption. 223
But still there is a way ahead to legislate and implement such provisions in coherence
with practical needs as well as social acceptability.
Amending Anti-Dowry Laws for better Implementation
The threat of Dowry has turned into a social danger in present day India
prompting the persecution on women, physical brutality on the brides, causing money
related and emotional burden on the family of the bride, conjugal clash, etc 224. This
practice is a deep rooted evil in the society which is persisting since ages and
flourishing day by day. Prior, instances of dowry deaths, and burning of brides for
dowry demand were registered by the police as mishaps or suicides. By 1977-78, after
many decades it was finally understood that the major part of the deaths of married
221
Supra note 150.
222
Supra note 158.
223
Supra note 159.
224
Gurudev, ―The Origin of Dowry System – British Policies convert Gifts to Bride into an Instrument
of Oppression against Women‖ available at: http://www.hitxp.com/articles/history/origin-dowry-
system-bride-woman-india-british/ (Visited on July 29, 2017).
111
females which were enrolled as incidental deaths or instances of suicides were, truth
be told, murder or abetted suicides. It took over 10 years for the governing body to
make dowry death an offence under the Penal Code and to prescribe sentence for the
guilty parties225. The form to which the evil custom of dowry has transformed since
last twenty five years has no traces in the traditional and age old marriage rituals 226.
The requirement for insertion of the provisions was realized by the Law Commission
of India in its 91 st report which was submitted on 10th August, 1983 on ―Dowry
Deaths and Law Reform‖227. Section 304B, I.P.C. 228
and Section113B Evidence
Act229 were inserted by the ―Dowry Prohibition (Amendment) Act, 1986‖. The
occurrence of incidents of bride burning and dowry deaths occupies a prime position
yet for years it was considered a digression of certain Indian societies. Each citizen
must attempt to be refreshed with the existing Acts and statutes passed by the
legislature and should appropriately use them when there is a critical need to practice
their rights.
225
Shobha Saxena, Crimes against Women and Protective Laws 114-115 (Deep and Deep Publications
Pvt Ltd, New Delhi, 2008).
226
Virbhan v. State of U. P., AIR 1983 SC 1002.
227
1983).
228
Supra note 178.
229
Section113B Indian Evidence Act, 1872.
112

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CHAPTER 3

LEGISLATIVE MEASURES ON LAW RELATED TO DOWRY

3.1 Initial Legislative Attempts related to Dowry Prohibition

In view of the persistent nature of the problem and thereby adverse

3.2 Making of Anti- Dowry Legislation

(a) By one party to a marriage to the other party to the marriage, or

Consequently, the third type of gifts, property or valuable articles given

Difference between Dowry and ‘Stridhan’

Stridhan is quite often misunderstood or misinterpreted as dowry even though

Dowry is a property or valuable security given or agreed by the bride‘s side to

Meaning of the Expression- ‘given or agreed to be given’

―Dowry‖ in the meaning of the expression contemplated by Dowry Act is a

Distinction between Mahr, Dower and Dowry

Punishment for Giving or Taking Dowry

Section 3 and 4 provide punishment for giving or taking dowry as well as

It is essential that to bring a case under the ambit of Section 3 or 4, the

In a related case, Bhoora Singh v. State of Uttar Pradesh42 , a letter was

Section 4 A puts a ban on any kind of advertisement on giving or taking of

Criminal Breach of Trust on Illegally Retaining Dowry Articles

 If a complaint has been made by a person aggrieved by this offence,

A very important provision Section 8A was inserted in D.P.A. in the year

This provision effectively protects the socio-economic interest of Indian

The provision has been challenged as constitutionally invalid on the ground of

Section 8B was inserted by ―Dowry Prohibition (Amendment) Act 1986‖ that

With an objective to provide teeth to dowry prohibition laws, the Central

3.3 Dowry Related Offences Covered under Indian Penal Code

The occurrence of ‗dowry offences‘ is one such manifestation of imbalanced

3.3.1 Dowry Death (Section 304B)

The Meaning of ‘Dowry’ under Section 304B

The Meaning of ‘Otherwise, than in Normal Circumstances’

Section 304B besides, its own independent objective, is a synthesis of Sections

Essentials to Invoke Section 304B

 Death must be occurred by burning or bodily injury or under abnormal

The provision of dowry death clearly states that liability of a person is

No Conviction under 304B if ‘Cruelty’ is not proved96

If dowry is not demanded before or at the marriage or there is no mention of

The Charge under Section 302 and 304B may Co-exist

Sometimes, a question arises as to whether charge under Section 302, I.P.C.

3.3.2 Abetment of Suicide (Section 306)

 The deceased committed suicide.

In cases of alleged abetment of suicide, the direct or indirect acts of instigation

3.3.3 Misappropriation of Dowry amounts to Criminal Breach of Trust (Section

3.3.4 Cruelty by Husband or his Relatives (Section 498A)

 The victim must be a married female.

Meaning of Cruelty under Section 498A

Constitutional Validity of the Offence of Cruelty

Therefore, there is no question of double jeopardy or any violation of Art

Section 498A is Attracted even if Acquisition under 304B, I.P.C. Fails.

A Need to Revisit the Provision of Cruelty

Section 13(1)(ia) of Hindu Marriage Act prescribes various grounds for

3.5 Law of Evidence and Offences Related to Dowry

3.5.1 Presumption of Abetment of Suicide

Application of Section 113B

Whenever these facts are established by evidence, the presumption of Section

3.5.3 Dying Declaration in Dowry Death

Admissibility of dying declaration of a severely burnt victim

3.6 Forensic Investigation Procedure in Dowry Deaths

In a study conducted by Department of Forensic Medicine in Aligarh, it was

Death Caused Due to Burn Injuries

Death Caused by Suffocation/ Hanging

The important factors to be determined in death caused by suffocation/

3.7 The Protection of Women from Domestic Violence Act, 2005